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CASE NO.: Appeal (crl.) 242  of  2000

PETITIONER: SHRI  BHAGWAN

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       10/05/2001

BENCH: M B Shah & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  facts  in  this criminal appeal  disclose  acts  of unparalleled  evil and barbarity as five persons of a family were battered to death without mercy by a young culprit aged about 20 years.

   PW-17  Shiv  Pratap, his wife, three daughters and  aged parents  were residing in a house at Bidasar.  The  marriage of  the eldest daughter of Shiv Pratap was fixed to be  held on  20.2.1994.   In order to purchase some articles for  the marriage,  Shiv  Pratap and his wife Bhanwari had  left  for Jaipur  on  14th December, 1993.  They came back to  Bidasar from  Jaipur  on 17th December, 1993 at about 9.30  PM.   On reaching  the house, they found the outer door of the  house open  and  the  inside room was found  bolted  from  within. PW-17  knocked  at  the door in vain and after  sometime  he scaled  over  the wall and gained entry into the  room.   He found  his parents lying dead with multiple injuries.  PW-17 and his wife then went to the room of their daughters.  That room  was  found locked from outside.  PW-17 broke open  the lock  and found dead bodies of his three daughters.  Various blood-stained articles were found strewn in the room.  PW-17 used  to peg the bag containing gold and silver jewellery of the  shop.  That bag was also found missing.  Shocked at the incident, they made a hue and cry.  The brother of PW-17 who was  staying nearby came to the house.  Some neighbours also came  there  in the meanwhile and saw the ghastly  incident. By  about 9.45 P.M., PW-17 gave the P-8 statement before the Station  House  Officer of Police Station Chhapar (  PW-23). PW-23 registered a case and immediately visited the place of occurrence.   He recorded the statement of Bhanwari  (PW-1); Murlidhar  (PW-2)  and  also the further statement  of  Shiv Pratap   (PW-17).   On  the  next   day,  he  took   various photographs  and conducted inquest of the dead bodies of all the  five deceased persons.  The various articles, including clothes  found lying in the house, were recovered.  Many  of these articles were found blood-stained.

   In  his statement, PW-2, Murlidhar mentioned that on the

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evening  of  14th December, 1993, he had seen  the  deceased Jora  Ram, the father of Shiv Pratap, at about 6.00 PM going to  his house after closing the shop and the appellant, Shri Bhagwan was also accompanying him.  PW-2 further stated that Shri Bhagwan was known to him previously as he had worked in the  shop of Shiv Pratap for about 8 to 10 months.  He  also stated  that he saw the appellant and Jora Ram entering  the house  of Shiv Pratap.  Based on this information, appellant Shri  Bhagwan  was arrested on the night of  18th  December, 1993  and  the investigation of the case was taken  over  by PW-24  .   He  too  visited  the  place  of  occurrence  and collected  various  articles  from  there.   A  broken  iron ’Kunta’,  a  wooden  Pestle and an iron scissors  were  also recovered  from  the  scene  of  occurrence  and  all  these articles  were  stained  with   blood.   The  appellant  was interrogated  and  based  on  his   statement,  an  axe  was recovered  from the water tank located on the terrace of the house  of  Shiv  Pratap.   During   the  course  of  further investigation,  the appellant gave a statement regarding the place  of concealment of golden jewellery and other articles taken  away  from  the house of  Shiv  Pratap.   Appellant’s brother-in-law  (Bahnoi)  Ramu Ram was a resident of  Sardar Shahar.   The appellant led the police party to the house of Ramu  Ram and from his house a bag containing jewellery  and other  articles were seized under Ex.  P-83.  These articles included  one gold finger-ring, gold ear tops and nose tops, white pearls, etc.  All these articles were later identified by Shiv Pratap as gold ornaments belonging to his mother and daughters.   From the house of Ramu Ram, a small tobacco box was  recovered  which  contained  12 copper  pieces  and  an envelope  of  ’Kumkum  Patri’   addressed  to  Shiv  Pratap, Bidasar,  and  the  sender’s name was one Manak  Chand  Soni (PW-10).   Manak Chand was examined and he deposed that this invitation  had  been  sent  by him to Shiv  Pratap  on  the occasion  of the marriage of his daughter which was on  10th December, 1993.

   Appellant,  Shri  Bhagwan also gave a statement  to  the effect  that while he was travelling in a bus, he had thrown away the shirt worn by him at the time of occurrence, near a place  three kilometers away from Sujangarh.  The  appellant led  the  police party to that place and the said shirt  was recovered from the bushes near the place where the appellant had  stated  to  have  thrown  the  same.   This  shirt  was blood-stained  and  it bore the label of 786 J.K.   Tailors, Subzi  Mandi,  S.R.D.R.  On the shirt, number 427 was  found marked.   The  investigation officer later visited the  said shop  of J.K.  Tailors and questioned the owner of the shop, Zafar  Hussain  (PW-18).  PW-18 stated that he had  stitched the  shirt  for the appellant and he had also  recorded  the name  of the appellant and the measurements in the register. Exh.   P-48 is the register maintained by him and as against serial  number 427, the name of appellant, Shri Bhagwan Soni was found written.

   The  appellant was tried for offences under Section  302 and 392 read with Section 397 IPC and was found guilty.  For the offences under Section 392 and 397 IPC, he was sentenced to  undergo  R.I.   for  seven years and to pay  a  fine  of Rs.200/-.   For  the  offence  under Section  302  IPC,  the appellant  was  sentenced  to  death and to pay  a  fine  of Rs.200/-  by  the  Sessions Judge.  This was  challenged  in appeal  and  the Division Bench of the Rajasthan High  Court confirmed the conviction and sentence of the appellant.

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   On  behalf of the appellant, Dr.  Shyamla Pappu, learned Senior  Advocate  (A.C.) very ably argued the case.  It  was pointed  out  by  her  that  the  evidence  adduced  by  the prosecution  was  not sufficient to find the guilt  for  the offences  he  had been charged with.  It was contended  that various  incriminating circumstances relied on by the  court are  not  sufficient  to draw an inference of guilt  of  the appellant  and  the chain of circumstances was not  cogently and  firmly  established  and these  circumstances  have  no definite  tendency  to  unerringly point the  guilt  of  the accused.    It  was  also  contended   that  in  a  case  of circumstantial  evidence, the chain of circumstances  should be  so complete that there is no escape from the  conclusion that  in  all  probability the crime was  committed  by  the accused and none else.

   The  counsel  for the appellant also argued that in  the Exh.   P-8 Statement given by PW-17 Shiv Pratap, the name of the  appellant was not mentioned, though he was  accompanied by PW-2 Murlidhar, who is alleged to have seen the appellant along  with  one of the deceased prior to the incident.   It may  be noted that PW-17 must have been under severe psychic trauma  at  the time of giving the Exh.P-8 Statement  before the  police and naturally he did not mention the name of the appellant  to  PW-  23 who recorded  his  statement.   PW-23 himself   recorded  the  statement   of   PW-2   immediately thereafter  and in that statement the name of the  appellant was  mentioned  as  the  person last seen with  one  of  the deceased.   Another contention urged by appellant’s  counsel is  that  in  the instant case series of injuries  had  been caused  to  the deceased persons and sticks, wooden  pestle, broken  handle of axe, scissors and ’kunta’ were alleged  to have  been used and it was argued that from these facts,  it is possibe that there must have been more than one assailant and therefore, the prosecution suppressed the real facts and the  appellant is entitled to the benefit of doubt.  All the articles  allegedly used by appellant as weapons of  offence are  things  which might have been collected from the  house itself  and according to the prosecution, the appellant  was seen  with  deceased  Jora  Ram in the evening  and  in  all probability  he  must have spent the night in the  house  of Shiv  Pratap.  The incident might have happened in the  dead of  the  night and that being a winter season, it  is  quite possible  that  attention of the neighbours might  not  have been  attracted.  The fact that household items were used as weapons of offence rules out the possibility of the presence of any outsider.  Moreover, it is also not possible to infer anything  from  the  nature  of  injuries  as  to  how  many assailants  were  involved.   It  is  quite  reasonable  and probable  that  one  assailant alone can cause  so  much  of injuries  especially during the night when the victims might have been in deep slumber.

   The counsel for the appellant also raised serious doubts regarding the various recoveries effected at the instance of the  appellant, but we do not find any reason to  disbelieve the  evidence adduced by the prosecution as there is further corroborative  evidence  to  support  the  recoveries.   The articles  were  recovered  from the close  relative  of  the appellant  and  they were identified by PW-17.  It  is  also established  beyond  doubt that the recovered blood  stained shirt belonged to the appellant.

   Having  regard to the various facts, we do not find  any

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reason  to suspect the guilt of the accused as it is  proved that  the  appellant was seen with one of the deceased  Jora Ram  in the evening of 14th November, 1993 and the appellant had  an acquaintance with the family members of the deceased as  he  had already worked as an apprentice in the  shop  of PW-17  to learn the trade of goldsmithy.  PW-17 deposed that the  appellant  was  sent  away  from the  shop  as  he  had committed some minor gold thefts.

   It  is also relevant to note that the appellant had some injuries  at the time of his arrest.  These injuries are  of minor nature, but even then the appellant could not give any satisfactory  explanation with regard thereto.  The recovery of  various articles at the instance of the appellant,  that too  immediately  after  the incident, goes a  long  way  in proving the guilt of the appellant.

   The possession of the fruits of the crime recently after it  has  been  committed, affords a  strong  and  reasonable ground  for  the  presumption  that   the  party  in   whose possession  they are found was the real offender, unless  he can  account for such possession in some way consistent with his  innocence.  It is founded on the obvious principle that if  such  possession had been lawfully acquired, that  party would  be able to give an account of the manner in which  it was  obtained.  His unwillingness or inability to afford any reasonable  explanation is regarded as amounting to  strong, self  inculpatory evidence.  If the party gives a reasonable explanation  as  to how he obtained it, the courts  will  be justified  in  not  drawing the presumption of  guilt.   The force  of this rule of presumption depends upon the  recency of  the  possession as related to the crime and that if  the interval  of  time  be   considerable,  the  presumption  is weakened  and more especially if the goods are of such  kind as  in the ordinary course of such things frequently  change hands.   It is not possible to fix any precise period.  This Court has drawn similar presumption of murder and robbery in series of decisions especially when the accused was found in possession  of these incriminating articles and was not in a position  to give any reasonable explanation.  Earabhadrappa @  Krishnappa vs.  State of Karnataka (1983) 2 SCC 330 was a case  where the deceased Bachamma was throttled to death and the  appellant was taken into custody and gold ornaments and other  articles were recovered at his instance.  This  Court observed:

   This  is  a case where murder and robbery are proved  to have been integral parts of one and the same transaction and therefore  the presumption arising under Illustration (a) to Section  114  of  the  Evidence Act is  that  not  only  the appellant  committed  the  murder of the deceased  but  also committed  robbery of her gold ornaments which form part  of the same transaction.

   In  another  case reported in (1997) 10 SCC 130  [Mukund vs.   State  of M.P.], the prosecution case was that in  the night  intervening  17.1.1994 and 18.1.1994, the  appellants trespassed  into  the residential house of one  Anuj  Prasad Dubey,  committed murders of his wife and their two children and  looted their ornaments and other valuable articles.  On the   next   night,  the   appellants  were   arrested   and interrogated.   Pursuant to the statement made by one of the accused,  gold and silver ornaments and other articles  were recovered.   This  court,  relying on  an  earlier  decision

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reported  in  Gulab Chand vs.  State of M.P.  (1995)  3  SCC 574, observed :

   "If  in  a  given case --- as the present  one  ---  the prosecution  can  successfully  prove that the  offences  of robbery  and  murder  were  committed in one  and  the  same transaction  and soon thereafter the stolen properties  were recovered,  a court may legitimately draw a presumption  not only  of  the fact that the person in whose  possession  the stolen  articles  were found committed the robbery but  also that he committed the murder."

   In  the  instant case, the appellant could not  give  an explanation  as  to how he came into possession  of  various gold  ornaments and other articles belonging to Shiv  Pratap and the members of his family.  The appellant also could not give any reasonable explanation how he sustained injuries on his  body  and how his shirt became blood-stained.   In  the facts  and  circumstances,  it  is  a  fit  case  where  the presumption  under  Illustration (a) to Section 114  of  the Evidence Act could be drawn that the appellant committed the murders and the robbery.  The courts below have rightly held the appellant guilty of the offences charged against him.

   As regards the question of sentence, the counsel for the appellant  submitted that the appellant was a youngster aged 20  at  the time of crime and ever since the  imposition  of death  penalty  on  him he has been  under  devastating  and degrading  fear  that is imposed on the condemned  and  that appellant must have been under intense mental suffering that is  inevitably associated with confinement under sentence of death.   It  is submitted that these factors had been  taken note  of  by  this Court as relevant mitigating  factors  to commute the sentence of death to life imprisonment.

   Of  course,  the  nature of the crime committed  by  the appellant  was  so  horrendous and exceptionally  cruel  and sadistic.   However, we are inclined to take a lenient  view having  regard to the various facts and circumstances of the case.  In dealing with criminal matters where death sentence is  prescribed  in law as the punishment for the crime,  the courts  are required to answer new challenges as the  object has  to  be  not only to protect the society at  large,  but impose  appropriate sentence lest there should be a tendency to  undermine the public confidence in the criminal  justice delivery system.

   In  A.  Devendran v.  State of Tamil Nadu [(1997) 11 SCC 720],  while considering the question of imposition of death penalty, this Court observed:- (in para 26)

   Bearing in mind the ratio of the aforesaid cases it may be  seen  that  since the evidence of an approver  has  been taken  out of consideration the conviction of the  appellant Devendran  under Section 302 has been upheld on the basis of the  evidence  of  PW2, PW5 and the recovery of  the  pistol which  was used for the commission of murder from the  house of the said Devendran as well as the recoveries of ornaments and  other jewelleries belonging to the informant  recovered from  the house of Devendran on the basis of his  statement, while  in custody and those jewelleries being identified  by PW4.   The  aforesaid evidence by no stretch of  imagination brings  the  case  in hand to be one of the rarest  of  rare cases where the extreme penalty of death can be awarded.

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   Similar  is  the  position  in the  present  case.   The circumstantial evidence discussed above, even though held to be  reliable for convicting the accused, we do not think  it to  be  one  of the rarest of rare  cases  warranting  death sentence.

       Hence, what would be the appropriate punishment?

   Crimes,  like  the one before us, cannot be looked  upon with  equanimity because they tend to destroy ones faith in all that is good in life.  A young man was given opportunity to  learn gold-smithery.  He was once sent away for  alleged act  of  theft.  Yet again, on the day of incident,  he  was permitted  to accompany the deceased old man and as per  the evidence,  he  accompanied the deceased in his  house.   The reward  of  that kindness is murder of old man and his  wife alongwith  three daughters including one whose marriage  was fixed  after  two months.  Hence, even though we reduce  the death penalty, we think that punishment should be sufficient so  as to have deterrent effect as well as no further chance to  the  accused for relapsing into the crime  and  becoming danger to the Society.

   Section 57 IPC provides that in calculating fractions of terms of punishment, imprisonment for life is to be reckoned as  equivalent to the imprisonment for twenty years.  In our view,  considering the heinous barbaric offence committed by the  accused,  in no set of circumstances accused should  be released  before  completion  of 20 years  of  imprisonment. This  Court  in Dalbir Singh and others v.  State of  Punjab [(1979)  3  SCC  745] considered the question that  in  case where sentence of death is reduced to life imprisonment, for how  many  years accused should be detained in prison.   The Court  in  paragraph 14 held thus:- 14.  The  sentences  of death in the present appeal are liable to be reduced to life imprisonment.   We  may  add  a footnote to  the  ruling  in Rajendra  Prasad  case.   Taking the cue  from  the  English legislation   on  abolition,  we   may  suggest  that   life imprisonment which strictly means imprisonment for the whole of  the mans life, but in practice amounts to incarceration for  a period between 10 and 14 years may, at the option  of the  convicting court, be subject to the condition that  the sentence  of  imprisonment shall last as long as life  lasts where  there  are  exceptional   indications  of   murderous recidivism  and  the  community cannot run the risk  of  the convict  being  at  large.   This  takes  care  of  judicial apprehensions  that unless physically liquidated the culprit may at some remote time repeat murder.

                                       (Emphasis added)

   In  case of Subash Chander v.  Krishan Lal & Ors.  [2001 (3) SCALE 130], the said principle is followed by this Court and  it  was ordered that accused shall be incarcerated  for the remainder of his life and that he shall not be let loose upon the society as he is a potential danger.

   Question  may arisewhether in view of the provision  of Section  433(b)  read  with Section 433-A  Cr.P.C.   accused should   be   released  on  completion   of  14   years   of imprisonment?  For this purpose, we would make it clear that under  Section 433 (b) enables the appropriate Government to commute   the  sentence  of   imprisonment  for  life,   for imprisonment  of a term not exceeding 14 years or for  fine. Under  Section  433-A, there is an embargo on that power  by

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providing  that where a sentence of imprisonment for life is imposed  on conviction of a person for an offence for  which death is one of the punishments provided under the law, such person  is  not  to be released from prison  unless  he  had served  at  least  fourteen  years  of  imprisonment.   This question is considered by various decisions rendered by this Court  and  by the Privy Council and it has been  reiterated that a sentence of imprisonment for life imposed prima facie be  treated  as imprisonment for the whole of the  remaining period  of the convicted persons natural life.  It is  also established  law that rules framed under the Prisons Act  do not  substitute  a  lesser  sentence   for  a  sentence   of transportation  for  life.   This Court in State  of  Madhya Pradesh  v.   Ratan Singh and others [(1976) 3 SCC  470]  in paragraphs 4 and 9 held thus:-

   4.   As  regards  the  first point,  namely,  that  the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the  Prisons  Act, the matter is no longer res  integra  and stands  concluded  by  a  decision of this  Court  in  Gopal Vinayak  Godse v.  State of Maharashtra [(1961) 3 SCR  440], where  the Court, following a decision of the Privy  Council in  Pandit Kishori Lal v.  King Emperor [(LR 72 IA 1 :   AIR 1945 PC 64] observed as follows:

   Under  that  section, a person transported for life  or any  other  term  before the enactment of the  said  section would   be  treated  as  a  person  sentenced  to   rigorous imprisonment for life or for the said term.

   If  so,  the  next  question is  whether  there  is  any provision   of   law   whereunder  a   sentence   for   life imprisonment,  without  any formal remission by  appropriate Government  can  be  automatically  treated  as  one  for  a definite  period.  No such provision is found in the  Indian Penal Code of Criminal Procedure or the Prisons Act.

       *       *       *       *       *

   A  sentence  of transportation for life or  imprisonment for  life  must prima facie be treated as transportation  or imprisonment  for  the whole of the remaining period of  the convicted persons natural life.

       The Court further observed thus:

   But  the Prisons Act does not confer on any authority  a power  to commute or remit sentences;  it provides only  for the regulation of prisons and for the treatment of prisoners confined  therein.  Section 59 of the Prisons Act confers  a power on the State Government to make rules, inter alia, for rewards  for good conduct.  Therefore, the rules made  under the Act should be construed within the scope of the ambit of the  Act.   .  .  .  Under the said rules the orders  of  an appropriate Government under Section 401, Criminal Procedure Code,  are a pre-requisite for a release.  No other rule has been  brought  to our notice which confers  an  indefeasible right  on a prisoner sentenced to transportation for life to an  unconditional release on the expiry of a particular term including  remissions.   The rules under the Prisons Act  do not  substitute  a  lesser  sentence   for  a  sentence   of transportation for life.

   The  question  of  remission is exclusively  within  the

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province of the appropriate Government;  and in this case it is  admitted  that, though the appropriate  Government  made certain remissions under Section 401 of the Code of Criminal Procedure,  it  did  not  remit the  entire  sentence.   We, therefore, hold that the petitioner has not yet acquired any right to release.

   It  is,  therefore, manifest from the decision  of  this Court  that the Rules framed under the Prisons Act or  under the  Jail  Manual do not affect the total period  which  the prisoner  has to suffer but merely amount to  administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This  Court  further  pointed  out   that  the  question  of remission of the entire sentence or a part of it lies within the  exclusive  domain of the appropriate  Government  under Section  401  of the Code of Criminal Procedure and  neither Section  57 of the Indian Penal Code nor any Rules or  local Acts  can  stultify  the  effect of  the  sentence  of  life imprisonment given by the court under the Indian Penal Code. In  other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is  not  possible to fix a particular period the  prisoners death  and  remissions  given under the Rules could  not  be regarded  as  a substitute for a sentence of  transportation for life.

   In  Maru  Ram  v.  Union of India [(1981)  1  SCC  107], Constitutional  Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since  in  Section 433-A we deal only with  life  sentences, remissions  lead  nowhere and cannot entitle a  prisoner  to release.  Further, in Laxman Naskar (LIFE CONVICT) v.  State of  W.B.  and another [(2000) 7 SCC 626], after referring to the decision of the case of Gopal Vinayak Godse v.  State of Maharashtra  [(1961)  3 SCR 440], the Court reiterated  that sentence  for  imprisonment  for   life  ordinarily  means imprisonment  for  the whole of the remaining period of  the convicted  persons natural life;  that a convict undergoing such  sentence  may earn remissions of his part of  sentence under the Prison Rules but such remissions in the absence of an  order of an appropriate Government remitting the  entire balance  of his sentence under this section does not entitle the  convict  to be released automatically before  the  full life  term is served.  It was observed that though under the relevant  Rules  a  sentence for imprisonment  for  life  is equated  with  the definite period of 20 years, there is  no indefeasible  right  of such prisoner to be  unconditionally released  on  the expiry of such particular term,  including remissions  and that is only for the purpose of working  out the  remissions  that  the  said sentence  is  equated  with definite period and not for any other purpose.

   Therefore,  in  the interest of justice, we commute  the death  sentence  imposed upon the appellant and direct  that the appellant shall undergo the sentence of imprisonment for life.   We  further direct that the appellant shall  not  be released  from the prison unless he had served out at  least 20  years  of  imprisonment  including  the  period  already undergone  by  the  appellant.  As  regards  offences  under Sections  392  & 397 IPC, we confirm the conviction  of  the appellant and no separate sentence is awarded.

   With  the  above  directions  and  modification  in  the sentence, the appeal is disposed of.

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